Fair Housing Matters

Does a board’s concern over liability or fear of getting sued, allow a board to require children to be supervised?

No. Neither is a legitimate reason to require supervision. Every business in the country is fearful of these two things, but that does not mean that it can run roughshod over a person’s legal rights. By the same token, federal and state fair housing laws expressly protect the rights of families and children to be free from discrimination against children. By law, children are allowed to play outside just so long as there isn’t a compelling reason that would require supervision. A board’s personal fear of liability does not qualify as a compelling reason that would allow him to usurp a family’s federal and state fair housing rights. A compelling reason usually deals with a true, dangerous situation if the child is left alone, such as small children swimming in a pool unattended. If the board truly has a legitimate safety concern that he is trying to address, then he must take careful precautions to narrowly tailor a rule that will deal very specifically with a limited problem. For example, if the board is worried about young children drowning in the pool, then it is perfectly okay to have a rule that says, “Children under 14 must be supervised while swimming.” However, the board goes too far if, in an effort to solve this problem, he creates a rule that says, “No children are allowed to play outside at any time.” Yes, this would also solve the problem, but the rule is too broad.

Can a board refuse to allow children play outside because he is worried about liability or is fearful of getting sued?

No. Every business in the country is fearful of liability, but that does not mean that it can run roughshod over a person’s legal rights. By law, children are allowed to play outside. A board’s personal fear of liability does not qualify as a compelling reason that would allow him to refuse to let children play outside. One court summed it up perfectly when it ruled as follows: “Concerns that children will get hurt while playing outside, be it nicks, scratches, bumps or bruises, have been concerns dogging parents since the dawn of time. Were such ever-present, generalized concerns deemed sufficient in and of themselves to justify outdoor use restrictions to a condominium complex, there would be little place left that such a rule would not be considered valid. In short, the mantra of child safety cannot and is not sufficient to justify a restriction.” This particular court recognized the fact that boards would be able to completely control the lives of children if they could simply claim that they were worried about liability.

The reality is that some board simply do not want children playing outside, so they come up with a vague justification for refusing to allow kids to play, namely, that playing is not allowed because they do not want to get sued if the child gets hurt. This is not a valid reason to refuse to let children play outside. Children are allowed to play outside. The board cannot use fear of liability as an excuse to prevent children from playing. Courts are concerned about actual, real danger, not possible dangers that can occur. For example, there is clearly a risk if children are allowed to shoot bb guns, hit hard baseballs, or throw lawn darts in the common areas, as an injury could easily occur. Obviously, a board can prohibit such activities. However, there is no such risk if children toss sponge balls, blow bubbles, play hopscotch, or play badminton. There is no risk with these activities. A manager cannot prohibit kids from engaging in such activities.

Can a Board Prohibit Teenagers From Socializing?

No. If the rule is specifically aimed at teenagers (e.g., the rule says, “No teenagers may loiter on the premises”), then the rule is illegal. The board is required to treat teenagers equal to adults. A board cannot make rules that single-out teenagers. By the same token, the board cannot refuse to allow teenagers to visit a unit, simply because the board is worried about them “causing trouble.” Teenagers cannot be singled out. They must be treated equally as adults.

Equally important is the fact that a landlord cannot require teenagers to be supervised in common areas. Multiple federal courts have found it illegal to have rules that would prohibit teenagers from being in the common areas unless they were supervised. A board cannot require teenagers to be supervised while in common areas.

Is it permissible to have adult-only swimming hours or Jacuzzi time?

No. It is illegal to exclude children from the pool at any time while the pool is open. A complex cannot set aside time for adults only. It is also illegal to exclude children from the Jacuzzi unless the child is physically too young to sit in a Jacuzzi. The pool and Jacuzzi must be accessible to children during the same hours that it is accessible to adults. The law does not permit boards to make separate rules for children, no matter how convenient it might be to adults. A child can only be excluded if it would clearly be too dangerous for the child to use the facility. Likewise, although boards may not want teenagers hanging out in the Jacuzzi, he cannot exclude them from such.

Does the peace and quiet of the community allow the board to prevent kids from playing outside?

No. The law requires residents to put up with reasonable noises made by children. The law expressly states that a desire for peace and quiet is NOT grounds for making rules against children. One particular court ruled that a written rule which stated “Children will not be allowed to play or run around inside the building area at any time because of disturbance to other residents or damage to building property” violated fair housing laws. Another court held that it was illegal for a board to exclude children from the common areas because the board felt that children were “rowdier, noisier, more mischievous and more boisterous than adults.” Simply put, a board cannot refuse to allow children to play outside simply because they will make noise.

A frequent problem that occurs is that some residents will constantly complain to management about the noise that children make while playing outside. In other words, they want the complex to be quiet. The manager might feel compelled to listen to these complaining tenants and tell parents to either keep their kids inside or only allow them to play if they are quiet. This is illegal. Children have the right to run, play, laugh, and make noise. A board cannot insist upon a quiet complex. Children make noise. That is part of being a kid. The law requires boards and residents to put up with such noises. It is illegal to attempt to silence children so that others will not have to deal with their noise. Any rule that attempts to do so is illegal and unenforceable. As such, a board cannot prohibit children from playing hopscotch, Hot Wheels, Barbies or dolls, hand held video games, reading books, tossing soft balls, playing tag, or any other harmless game.

Another problem that occurs is that a board will tell children to go back inside their units if they are being too loud. This is illegal for a few reasons. First, a board cannot order a child to go back inside their unit under any circumstances. This is true even if the child was out of control or making extremely loud noises. A child has the right not to have someone exercise control over their person. While there is nothing inappropriate about a board asking a child to calm down, the board cannot order a child to go back inside their unit. Second, children are allowed to make normal noise while playing. As such, a board cannot stop this noise even if the noise is annoying. Just so long as the children are not being extremely loud, they are free to make normal noise while playing.

Another problem that occurs is that a board will declare that she does not want children playing outside because there are tenants who work nights and sleep during the day. This is not justification that would allow a board to refuse to let children play outside. Children are free to play outside even though some residents may sleep during the day.

Skateboards, bicycles, and scooters: Can they be prohibited?

Yes and no. Generally speaking, a board cannot prohibit activities of children unless there is a compelling need to do so and the rule is not too invasive. It is not unusual for a condominium project to post rules that state that skateboards, bicycles, and scooters are not allowed. Usually, these rules are enacted to put an end to annoying kids. This is not a legal reason for such rules. The desire for peace and quiet is not grounds for prohibiting children from playing. Rather, the board can only prohibit activity if the board can show that there is a serious threat of injury if the activity is permitted to continue. Moreover, even if the possibility of injury can be shown, the rule cannot go too far. For example, if the complex has a narrow sidewalk and children have crashed their bicycles into other residents, then it may be fine to prohibit bike riding. However, the rule would go too far if it also prohibited toddler bicycles or push cars, as nobody is reasonably going to get “run over” by a toddler bike or push car.

The same thing would apply to rule that prohibits throwing footballs, baseballs or any other device. If there is a true danger present, then it can be prohibited. However, if there is no real danger, then it cannot be prohibited. For example, it would be okay to prohibit throwing hard baseballs, as a baseball could cause injury to person or property. However, it would be inappropriate to prohibit a nerf football, a sponge ball, or any other safe throwing device.

Broken Sprinklers: Can a board refuse to allow children to play in the grass because she is afraid of sprinklers getting broken?

Some boards will use any excuse to prevent children from playing. One such excuse is that they are afraid that children will break sprinklers. This is not a legal justification for refusing to allow children to play outside. This is just a fake reason to keep children from playing outside. Children are free to play on lawns. If a sprinkler is broken, a landlord is free to bill the parent the cost of replacement, but they cannot use this as an excuse to prevent all children from playing on lawns.

By the same token, a board cannot claim that playing is not allowed because they are afraid that children will trip over a sprinkler and get hurt. This is not a legal justification for refusing to allow children to play on lawns or outside. One court summed it up perfectly when it ruled as follows: “Concerns that children will get hurt while playing outside, be it nicks, scratches, bumps or bruises, have been concerns dogging parents since the dawn of time. Were such ever-present, generalized concerns deemed sufficient in and of themselves to justify outdoor use restrictions to a complex, there would be little place left that such a rule would not be considered valid. In short, the mantra of child safety cannot and is not sufficient to justify a restriction.” This particular court recognized the fact that boards would be able to completely control the lives of children if they could simply claim that they were worried about liability.

Crying Babies

Neighbors are required to put up with the sounds of crying babies. Federal law protects families of newborn babies. If a board threatens to penalize a family because their baby cries too much, or cries at odd hours, then the board has violated fair housing laws. Babies are allowed to cry at any hour, and both the board and the residents are required to put up with it.

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